ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04,

Facts:

The Applicant was a Somali national from Mogadishu and belonged to the minority Ashraf population group. His sister had been raped there and his brother killed. His asylum claim was refused in the Netherlands on the basis that he could settle in one of Somalia’s relatively safe areas. The authorities also disputed his age as a minor. After a number of appeals that were rejected in the Netherlands the Applicant submitted an application to the ECtHR. He complained that his expulsion to Somalia would expose him to a real risk of being subjected to treatment in breach of Art. 3 ECHR, having regard to his personal situation of belonging to a minority in the context of the overall human rights situation in Somalia.

Decision & reasoning:

As to admissibility, having noted that the Applicant was eligible for a residence permit under the policy of protection for certain categories, the Dutch government suggested that the Court strike out the case. The Applicant requested that the Court not do this. Noting that the Dutch policy of protection of certain categories will be reviewed when the Court has decided on the merits of asylum claims by Somali nationals in which it has indicated a Rule 39 interim measure, the Court found that no circumstances existed to find that the application should be struck off the list. As to the exhaustion of domestic remedies, the Court found that an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (Para. 21). The Court considered that though there was the possibility of an appeal to the Administrative Jurisdiction Division of the Council of State, in practice a further appeal would have had no prospect of success taking into account, among other points, its consistent case-law at the relevant time on the use of internal protection alternatives. The case was found admissible.

In relation to Art. 3, the Court found that the establishment of any responsibility of the expelling State under Art. 3 inevitably involves an assessment of conditions in the receiving country and that the Court will assess all the material placed before it or, if necessary, material obtained proprio motu, in particular where an applicant – or a third party within the meaning of Art. 36 – provides reasoned grounds which cast doubt on the accuracy of information relied upon by the Respondent government (Para. 136). Given the absolute nature of Art. 3, it must be satisfied that the assessment made by the authorities is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other States, agencies of the UN and reputable NGOs. It would be too narrow an approach for the Court to take into account only materials made available by the domestic authorities without comparing these with materials from other objective sources. It held that, in assessing an alleged risk of an Art. 3 violation, ‘a full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time’ (Para. 136). It is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light after the final decision taken by the domestic authorities. As to ill-treatment, it must attain a minimum level of severity if it is to fall within the scope of Art. 3, the assessment of which is relative depending on all the circumstances of the case. The issue for the Court to examine was whether an expulsion to ‘relatively safe’ areas in Somalia as deemed by the Government would be in violation of Art. 3. In considering the COI, the Court considered it unlikely that the Applicant, who is a member of the Ashraf minority and who hails from the south of Somalia, could have relocated to Puntland or Somaliland. It emphasised the relevance of clan affiliation as an important element. It noted that the three most vulnerable groups in Somalia are said to be IDPs, minorities and returnees from exile and that if expelled to the relatively safe area the Applicant would fall into all three categories.

In terms of internal protection, the Court noted that Art. 3 does not preclude Contracting States as such from placing reliance on this concept in the assessment of an individual claim. However, the Court considered as a precondition for relying on an internal flight alternative ‘certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if, in the absence of such guarantees, there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment’ (Para 141). The stance of the Somaliland and Puntland authorities against such returns led the UK government to refrain from expelling rejected asylum seekers belonging to the Benadiri to those regions but the Netherlands government continued to insist that such expulsions were possible. In view of the position taken by Puntland and Somaliland, the Court found it rather unlikely that the Applicant would be allowed to settle there upon return. The Court then had to address the question of whether there would be a real risk of a violation of Art. 3 if the Applicant had to go to other areas of Somalia. The Applicant’s previous treatment in Somalia can be classified as inhuman within the meaning of Art. 3. The Court found that the situation had not undergone such a substantial change for the better that it could be said that the risk of the Applicant being subjected to this kind of treatment anew has been removed or that he would be able to obtain protection from the authorities. Overall, bearing in mind the fact that the Applicant was part of the Ashraf minority, the Court found that removal to Somalia would result in an Art. 3 violation. In terms of Art. 13, taking into account the provisional measures available in the Netherlands, the Court found that there was no violation of Art. 13.

Outcome:

The Court held that the Applicant’s expulsion to Somalia would be in violation of Art. 3 ECHR. No violation of Art. 13 ECHR was found.

Subsequent proceedings:

In March 2010, the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2010)10) wherein it found that the Netherlands had taken adequate execution measures. As to individual measures, the Court noted that the applicant was granted a residence permit for asylum purposes which is also renewable. As to general measures, changes were made to the way in which an alleged risk of ill-treatment under Art. 3 is assessed thereby ensuring that the overall county of origin situation is taken into account, and not merely on the grounds of reports of the Ministry of Foreign Affairs. Moreover, the Court noted that specific vulnerable minority groups, including that of the applicant, had been identified; and that asylums seekers now only have to adduce minor indications to qualify for a residence permit for asylum purposes (risk of torture or inhuman or degrading punishment or treatment). 

Observations/comments:

This Court judgment is important in setting out important safeguards for the application of the legal concept of ‘internal protection alternative’. These safeguards were then incorporated into the Commission recast proposal and the finally adopted recast Qualification Directive 2011/95/EU. The case is also important in terms of the principles it sets out with respect to country of origin information.

Case summary from the Netherlands Institute of Human Rights available here.

Academic article by Elaine Mak ‘On the ECtHR’s judgment in the case of Salah Sheekh v the Netherlands and its affect on asylum policy and adjudication in the Netherlands’ is available here.

Academic article: "The question of Salah Sheekh: Derrida's hospitality and migration law" by M.C. Stronks.

Salah Sheekh is a Refugee: New insights into primary and subsidiary forms of protection available here.

Other sources:

Country reports on Somalia which were published by the Dutch Minister of Foreign Affairs on the general situation in Somalia, November 2004 report, May 2005 country report, July 2006 country report, Medecins sans Frontieres letter, Dutch refugee council analysis of the 2004 country report,  Amnesty International analysis of the 2004 country report via letter;

Answers to Parliamentary questions: (Records of the Lower Chamber of Parliament – Handelingen Tweede Kamer – 2002-2003, no. 905, Annex, pp. 1893-94);

Parliamentary Paper – Kamerstuk – 2003-2004, 19 637, no. 812;

UNHCR position paper on return of rejected asylum seekers to Somalia January 2004;

Paper by academic K. Menkhaus “Somalia: A Situational Analysis and Trend Assessment”;

Amnesty International Reports;

Operational Guidance Note Somalia – Asylum and Appeals Policy Directorate of the Immigration and Nationality Directorate of the UK Home Office;

Report by International Crisis Group ‘Can the Somalia Crisis be Contained?’;

BBC news article: 'Somaliland nabs Belgian officials’